Executive Briefing November 17, 2017

TOP STORIES

The American Spectator published a piece examining the Supreme Court’s decision to review Microsoft’s warrant case, noting that a decision by the court will have far-reaching ramifications and serve as “legislation from the bench.” Rather than allowing the court “to usurp the prerogative of Congress,” the piece urges legislators to pass ICPA to provide greater legal clarity over requests for data and improve the existing MLAT process. The piece notes that it is the responsibility of Congress to act as a check on the judicial branch and represent the interests of Americans.

TOP QUOTE

“Fundamentally, ICPA would maintain communications privacy, clarify law enforcement’s right and ability to issue warrants for emails, and ensure that the government doesn’t inadvertently infringe on the privacy of foreigners. Additionally, rather than trampling on the laws of other nations, we would be erecting an example of innovative yet just legislation that other countries could adopt to likewise navigate the haze of a hurriedly evolving digital landscape… Whether Congress decides to support ICPA or abandons this matter to the whims of unelected judges will be a test of legislators’ commitment to the spirit of the separation of powers and their support for unambiguous laws that favor privacy over investigatory expedience.”

HILL UPDATE

Yesterday, the biggest US internet bill in years cleared a major hurdle on the path to becoming law. In a unanimous vote, the Senate Commerce Committee approved the Stop Enabling Sex Trafficking Act (or SESTA), clearing the way for a full vote by the House and Senate. As Congress wrestles over tax reform and the debt ceiling, it’s still unclear when SESTA will reach a larger vote, and it still faces stern opposition from tech policy organizations and even some anti-trafficking groups. But with more than 30 senators already signed on, the bill seems primed to pass whenever it reaches the floor.

The reauthorization of a controversial US government spying program has made further progress with the Senate’s intelligence committee putting forward its recommendations to the whole Senate. This follows a similar move by its counterpart in the House of Representatives last week. The report [PDF] from the Senate committee reveals however that, as in the House, a minority of lawmakers are unhappy about the powers that the reauthorization would formally grant the FBI to search for information on US citizens even though the program in question is specifically written to target only foreign individuals.

WASHINGTON — The White House cybersecurity czar acknowledged Wednesday that the Trump administration will have to compromise with Congress to renew a controversial surveillance program set to expire at the end of the year. Lawmakers want to make changes to scale back the sweeping law, which targets foreign terrorist suspects but also allows the government to collect the content of Americans’ emails, phone calls, text messages and other electronic communication without a warrant, when they are communicating with a foreigner.

ARTICLE SUMMARY

Fifteen months into a wide-ranging investigation by the agency’s counterintelligence arm, known as Q Group, and the F.B.I., officials still do not know whether the N.S.A. is the victim of a brilliantly executed hack, with Russia as the most likely perpetrator, an insider’s leak, or both. Three employees have been arrested since 2015 for taking classified files, but there is fear that one or more leakers may still be in place. And there is broad agreement that the damage from the Shadow Brokers already far exceeds the harm to American intelligence done by Edward J. Snowden, the former N.S.A. contractor who fled with four laptops of classified material in 2013.

Facebook told the U.S. government that it would support limited new federal rules requiring companies and campaigns to disclose more information about online political ads. But the social giant — in comments filed with the Federal Election Commission on Monday — did not appear to wade into what should be done about issues-related political ads, the kinds of ads purchased by Russian agents in an attempt to sow social unrest around the 2016 presidential election. Specifically, Facebook said it supported the FEC’s efforts to clarify when tech companies must disclose the origin of political ads, and what those disclosures must include.

With a software update, Apple has triggered a new wave of privacy discussions inside ad tech. At the same time, a privacy directive in the European Union promises to turn up the volume on that conversation. With apologies to Bob Dylan, the codes — legal and binary — are a changing, although what’s less clear are the motives behind these changes. Apple’s latest Safari 11 update imposes Apple cookie standards across the board. First and foremost, the new update blocks all third-party cookies, making Apple a de facto digital gatekeeper for consumers operating Apple software and devices. But the new update goes a step further by blocking or purging first-party cookies from users’ browsers without giving notice to consumers.

AN AD FEATURING a strapping Senator Bernie Sanders (I-Vermont) proffered a sketch book for users to “color your hero.” A post from South United invited followers to click a billowing Confederate flag. An invitation advertised an anti-Clinton rally to counter “anti-constitutional propaganda.” Each were recently revealed by lawmakers as Facebook fronts for the Russia-affiliated Internet Research Agency. The posts confirmed platform-enhanced intrusion in the 2016 election, paid in rubles, not dollars. A small social media spend could upend American democracy.

Since the outbreak of its fake news crisis last year, Facebook has announced several initiatives designed to promote authentic, fact-based journalism. Today, the company is rolling out its latest: what Facebook calls a “trust indicator,” an icon that you can tap to learn more about the publisher of articles shared on Facebook. Trust indicators, which you will see attach to articles shared on Facebook, offer information about publishers including their policies on ethics, fact-checking, and corrections, as well as their ownership structure and their masthead. Facebook said it will begin with a small group of publishers and expand over time.

A federal regulator announced an investigation into Apple on Tuesday over claims that elements of the tech giant’s products violate another company’s patents, Reuters reported. The U.S. International Trade Commission launched the probe after a software company called Aqua Connect and one of its subsidiaries filed a complaint last month. The agency, which presides over trade in and out of the United States, has the power to block imports of Apple’s products if it decides the company is breaking the law.

The technology industry is mobilizing to push the Trump administration over concerns on copyright matters in discussions to renegotiate the North American Free Trade Agreement (NAFTA). Top technology trade associations, which lobby on behalf technology firms’ political interests, say in a letter on Wednesday they’re concerned that NAFTA renegotiation discussions are going in the wrong direction on copyright provisions.

Ron Conway says that Silicon Valley needs to get more serious about politics. In the eyes of one of the tech industry’s most prominent investors, the challenges that Apple, Facebook, Google and other tech giants now face in Washington, D.C., are more urgent than ever — not the least because President Donald Trump is increasingly taking aim at immigrants. To that end, he said at an event Monday, the Valley has to have “eyes wide open that we’re in a very volatile environment right now, and the tech industry has to speak up for itself.” “If you go back five years, literally, tech companies were so apathetic about the political environment and just wanted to avoid politics,” said Conway, one of the earliest investors in companies like Google and PayPal.

THINK TANK/TECH TRADE ASSOCIATION HIGHLIGHTS

American Enterprise Institute (AEI)

Report on internet performance measurement: Visiting fellow Richard Bennett’s report found that “while broadband network speeds have improved substantially over the last decade, the web’s performance has stagnated from the end user point of view.” He argued that “better insight into web performance and increased flexibility in contracts between content platforms and broadband platforms may mitigate investment inequality effects.”(AEI REPORT – You Get What You Measure: Internet Performance Measurement as a Policy Tool, By Richard Bennett, November 16, 2017)

Brookings Institution

Report on “digitalization” and the workforce: “The ‘digitalization of everything’ has at once increased the potential of individuals, firms, and society while also contributing to a series of troublesome impacts and inequalities, such as worker pay disparities across many demographics, and the divergence of metropolitan economic outcomes.” The “report presents a detailed analysis of changes in the digital content of 545 occupations covering 90 percent of the U.S. workforce in all industries since 2001.” (BROOKINGS REPORT – Digitalization and the American workforce, By Mark Muro, Sifan Liu, Jacob Whiton, and Siddharth Kulkarni, November 15, 2017) (Additional: Brookings Press Release)

BSA | The Software Alliance

Statement on Foundations for Evidence-Based Policymaking Act: BSA stated that it “supports the passage of the Foundations for Evidence-Based Policymaking Act (FEPBA) of 2017 (H.R. 4174).” The group added, “Making such data more readily available will improve government transparency, promote government efficiency, and foster innovation of data-driven technologies such as artificial intelligence.” (BSA STATEMENT – BSA Supports Bill to Make Government Data Open to the Public, November 15, 2017)

Blog post on internet access: Millennial public policy fellow Spandana Singh wrote, “Growing up and moving between spaces with varying levels of internet access I realized that the policies and circumstances that hindered my access to a safe, reliable and open internet were inconveniences.” She continued, “But for millions around the world, these policies and circumstances mean very different things. They mean not being able to exercise freedom of speech against an oppressive government, they mean waking up one day to find that your child has committed suicide because someone cyberbullied them, and they mean your small business not being able to function because the internet is out, yet again.” (NEW AMERICA BLOG – The Opportunities and Inequities of a Global Internet, By Spandana Singh, November 16, 2017)

Statement on White House cyber vulnerability disclosure process: Policy analyst Andi Wilson stated that “in addition to transparency, it is important that we can trust that the VEP is restricted by rules set by Congress. This administration, or the next, could undo the steps that have been described to us today with the stroke of a pen. This announcement should not distract from the necessity to codify the VEP through legislation like the PATCH Act. Codification of the Vulnerabilities Equities Process is crucial to ensure confidence and trust in the process that evaluates the risks posed by dangerous flaws in software and hardware.”(NEW AMERICA STATEMENT – OTI’s Statement on the Vulnerabilities Equities Process Charter, November 15, 2017)

TechNet

Statement on Senate Modernizing Government Technology (MGT) Act: President and CEO Linda Moore said, “Congress’ passage of the Modernizing Government Technology Act will help put an end to the federal government spending 80 percent of its $80 billion annual IT budget on maintaining aging, insecure, and expensive legacy systems. With this law in place, we can begin to fully implementthe modern IT systems we need and that our people deserve in the 21st century.” (TECHNET STATEMENT – TechNet Welcomes Senate Passage of Modernizing Government Technology Act in NDAA, November 16, 2017)

U.S. Chamber of Commerce

Blog post on transatlantic cybersecurity: Senior manager Alexander Botting wrote, “Three particular avenues have the potential to increase cyber resilience on both sides of the Atlantic.” According to Botting this includes, “Greater alignment between EU and U.S. approaches to private sector cybersecurity,” “Cyber threat information sharing programs should be developed in a way that facilitates interaction between governments and businesses” and “EU and U.S. officials must sustain a dialog between industry and government.” (U.S. CHAMBER OF COMMERCE BLOG – The Road Ahead for Transatlantic Cybersecurity Cooperation, By Alexander Botting, November 15, 2017)

NOTABLE QUOTES

“[The bill] leaves in place current statutory authority to compel companies to provide assistance, potentially opening the door to government mandated de-encryption without FISA Court oversight… By omitting key information about the scope of authorities granted the government, the Committee is itself contributing to the continuing corrosive problem of secret law.”

“It has been held that the use of a GPS or a location tracking device, as was done here, elevates the level of intrusiveness. With the requirement of probable cause, a warrant for GPS tracking devices fits into the statutory scheme for eavesdropping and visual surveillance warrants… By its very nature… the use of a cell site simulator intrudes upon an individual’s reasonable expectation of privacy, acting as an instrument of eavesdropping and requires a separate warrant supported by probable cause.”

“The Trump administration — no friend of citizens’ privacy — is pushing for a permanent authorization of the law. That would be an error, not only because of the lack of thorough debate, but also because rapidly advancing technology will change the surveillance capabilities of the government.”

“The case challenges practices, revealed by Edward Snowden, that breach the rights to privacy and freedom of expression, which are guaranteed not only under U.S. domestic law, but also under international human rights law… The European Court of Human Rights has jurisdiction over 47 member states. The judgment in this case will therefore have significant implications for the legality of surveillance programs conducted in each of those countries. It will be binding on the United Kingdom and provide guidance to the other member states in evaluating the compliance of their own surveillance programs with the convention.”

“Unsurprisingly, Feinstein now is renewing the call for her bill, because, for her and other bureaucrats like her, personal privacy is a privilege; not a right… Instead of focusing on new, high tech ways to catch terrorists by imperiling the privacy rights of everyone who uses or manufactures a cell phone, government should focus instead on getting the basics right — like reporting convicted domestic abusers and persons dishonorably discharged from the military to the FBI’s National Instant Criminal Background Check System. Perhaps then we would have one less tragedy on the books, instead of another ineffectual power grab.”